Bench Memos

Probing the Mystery of Elena Kagan’s Beliefs

I confess that I’m a bit baffled by the hopes and concerns of some on the Right and on the Left, respectively, that Elena Kagan might secretly harbor some conservative legal views.  Anything’s possible in theory, I suppose, but let’s start with some basic facts: 

Kagan clerked for two very liberal jurists, D.C. Circuit judge Abner Mikva and Supreme Court justice Thurgood Marshall, and she calls Marshall her legal hero.  In addition to her current work in the Obama administration, she worked on the Dukakis presidential campaign and in the Clinton White House.  She’s been in the liberal milieu of legal academia for most of her career and has thrived in that milieu.  So far as I’m aware, no one who knows her well “doubt[s],” as Charles Fried puts it, “that her heart beats on the left.”  In short, except in those areas (presidential powers and national security) where she has expressed more moderate views, there is zero reason to expect that she’d be anything other than the doctrinaire liberal that she has vocally been on gay-rights issues.

For folks looking for yet more evidence, today’s Daily Princetonian carries an article on Kagan as a Princeton undergrad.  Kagan was editorial chairman of the paper for two years, and the student colleague who appointed her describes her politics as having been “progressive and thoughtful but well within the mainstream of the … sort of liberal, democratic, progressive tradition.”  (Ah, yes, the mainstream of the left stream.)  Here’s an excerpt about Kagan’s senior thesis on the history of the socialist movement in New York City:

“Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness,” she wrote in her thesis. “Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation.”

She called the story of the socialist movement’s demise “a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America … In unity lies their only hope.”

I think that it’s fair to say that anyone who found it puzzling—as “cr[ying] out for explanation”—why Americans “are more likely to speak of … capitalism’s glories than of socialism’s greatness” and who saw the demise of the American socialist movement as “sad” was well on the Left.  (To be clear:  I am certainly not contending that Kagan’s views might not have changed over the years; I am merely pointing out the utter dearth of evidence that Kagan might secretly harbor conservative views.)